14 April 2010

A Round Tuit (27)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

Neutrality used to be only for the Swiss. Now through the miracle of a series of tubes known as the internet, we can all enjoy being neither here nor there. What's that, Senator Stevens? Oh. It seems that net neutrality is something else entirely. Amir Efrati explains what it is and why it's in the news:

Net neutrality.

It’s a notion that for years has been the subject of intense debate between Internet content providers like Google who favor it and telecom companies like Comcast who don’t. In short, the debate is about how much control telecoms should have over the Internet networks they built, and whether all Internet traffic should be treated equally by telecoms.

....

It’s long been clear that some net neutrality battles would be waged in court. Today the DC Circuit Court of Appeals weighed in and handed the telecoms a victory against the Federal Communications Commission, which has supported net-neutrality principles.

The case before the DC circuit stemmed a citation issued by the FCC against Comcast in 2008 for interfering with or blocking its subscribers’ use of peer-to-peer networking applications. Those applications, such as BitTorrent, allow users to share large files directly with one another but consume significant amounts of bandwidth.

A unanimous three-judge DC Circuit panel ruled the FCC exceeded its authority when it issued the citation, ruling that Congress hadn’t given the FCC the power to regulate an Internet service provider’s network-management practices.

The legal blogosphere swung into action and rushed to post their thoughts on the decision before their ISPs shifted them back to dial-up access for twice the price of broadband. Fortunately for Elie Mystal, a friend gave him an early heads-up and he got a jump on the competition; he did not think the decision was "Comcastic":

This morning, a friend texted me, “You should do a post on D.C. destroying net neutrality.” In my best Arnold Drummond text/voice, I responded “What the f*** are you talking about, [Friend]?” See, in my world, the courts are here to help us — not to come into my home and place of business like the Visigoths hell bent on destroying the civilized world just because they can.

But my friend was right. For reasons passing understanding, the D.C. Circuit decided that today was a good day to try to ruin the internet.

....

Holy God. If you read the decision, it’s nothing short of a total smackdown of every argument the F.C.C. asserted to gain authority over the cable providers.

....

This is not good. Essentially the D.C. Circuit holds that the F.C.C. doesn’t have any authority to regulate how Comcast manages web traffic. That means that in this area, Comcast can do what it wants. That’s terrible news for people who think you should be in control of what you see on the ‘net, not your cable company.

Mitchell Lazarus was also displeased by the decision, but he wasn't entirely surprised by it:

The FCC’s position was a little shaky from the start. It never had a rule prohibiting the Comcast action that caused all the trouble, just a loosely-worded policy statement. And nothing in the Communications Act, from which the FCC derives all of its authority, specifically authorizes control over Internet traffic. The FCC thus had to fall back on a claim of “ancillary authority,” based on a catch-all statutory provision that allows the FCC to do pretty much anything “as may be necessary in the execution of its functions.”

But as the Court had previously held on a number of occasions, ancillary authority applies only if (1) some other statutory provision covers the subject matter, and (2) the challenged action is “reasonably ancillary” to the FCC’s exercising of its authority under (1). The FCC passed the first test, but not the second. The “other provisions” on which the FCC relied, said the Court, were either mere statements of congressional policy (which cannot support ancillary authority) or statutory provisions that miss the specific topics involved in Comcast’s behavior.

As a result, the FCC is legally barred from imposing or enforcing network neutrality.

Marvin Ammori took the loss a bit more personally as he was the attorney who prepared the complaint which led to the FCC's action:

I'll begin with how the decision affects you: it's really bad news for you and other Americans. I'm sorry to be the one to tell you, but I'm sure you've heard (from multiple news sources). The court decision is a stunning, sweeping defeat for the FCC and for its ability to protect consumers, foster competition and innovation, and preserve the Internet's role as an engine of free speech and democratic discourse. It means, essentially, that the largest phone and cable companies can secretly block dozens of technologies used by large corporations, nonprofits, and individuals to speak and organize, and the FCC can do nothing to protect us.

....

For this post, I want to look on the bright side.

First, we succeeded in many ways, factually. Politically, we brought a case that helped educate the public and the FCC about blocking and discriminating practices that Comcast claimed were becoming an industry standard across the entire Internet, at least in the US; hundreds of thousands of people got involved to stand up for an open, free Internet; and organizations ranging from the Christian Coalition to Moveon to people who love Barbershop Quartets stood together to ask their government to preserve the democratic promise of the Internet. And, because of public scrutiny and the FCC investigation, Comcast changed its practices. Those are good things.

....

[T]he carriers backtracked, in their public rhetoric, and argued a few things.

(1) We'd never block or interfere with the open Internet, even though we have announced the intention to do just that, and are spending hundreds of millions of dollars lobbying against "net neutrality" rules forbidding us from doing that. And (2) if we ever did interfere with the open Internet, don't worry, the FCC will punish us. And (3) the FCC will have the jurisdiction to do.

So we tested those three point.

....

So: test case resolved.

1. The carriers will actually interfere with the Internet, though they will lie and say they'd never do it, and then lie and say they haven't done it.

2. The FCC will act, but only if three Commissioners are heroic enough to withstand an overwhelming political assault.

3. The Bush-era FCC decisions gave away FCC authority to protect the American public for the most important communications medium the world has ever known.

Also taking the loss personally was Austin Schlick, the FCC's General Counsel; he wrote that the decision will disrupt and complicate the agency's broadband initiatives, but will not derail them:

Does the FCC still have a mission in the Internet area? Absolutely. The nation’s broadband networks represent the indispensable infrastructure for American competitiveness and prospects for future job creation, economic growth, and innovation. The Court did not adopt the view that the Commission lacks authority to protect the openness of the Internet. Furthermore, in 2009, Congress directed the agency to develop a plan to ensure that every American has access to broadband. Just three weeks ago, the Commission released its National Broadband Plan. The Plan contains more than 200 recommendations for bringing high-speed service to underserved individuals and communities, and using broadband to promote American competitiveness, education, healthcare, public safety, and civic participation.

The Comcast/BitTorrent opinion has no effect at all on most of the Plan. Many of the recommendations for the FCC itself involve matters over which the Commission has an “express statutory delegation of authority.” These include critical projects such as making spectrum available for broadband uses, improving the efficiency of wireless systems, bolstering the use of broadband in schools, improving coordination with Native American governments to promote broadband, collecting better broadband data, unleashing competition and innovation in smart video devices, and developing common standards for public safety networks.

At the same time, yesterday’s decision may affect a significant number of important Plan recommendations. Among them are recommendations aimed at accelerating broadband access and adoption in rural America; connecting low-income Americans, Native American communities, and Americans with disabilities; supporting robust use of broadband by small businesses to drive productivity, growth and ongoing innovation; lowering barriers that hinder broadband deployment; strengthening public safety communications; cybersecurity; consumer protection, including transparency and disclosure; and consumer privacy. The Commission must have a sound legal basis for implementing each of these recommendations. We are assessing the implications of yesterday’s decision for each one, to ensure that the Commission has adequate authority to execute the mission laid out in the Plan.

So Comcast v. FCC boils down to "evil communications conglomerates can throttle-back and meter your internet usage; women, children, those living in the sticks, the poor, Native Americans, and the handicapped hardest hit". Jon Siegel discussed what's at stake (particularly if you're a Native American in a wheelchair who lives off the beaten path):

This is a big deal. It would appear, as of today, that ISPs are free to charge different prices based on the kind of content users want to access and to discriminate against certain kinds of content that they think take up too much bandwith -- peer-to-peer file sharing applications, for example. If we want mandatory net neutrality, it looks like we'll have to get it from Congress.

Not everyone was so disheartened by the opinion. Fred von Lohmann is no fan of the Comcasts of the world picking-and-choosing amongst their customers' web traffic or adding new costs based on content, but he's more leery of the FCC's attempts to impose its authority on the internet:

The ruling is not likely to make much difference to Comcast subscribers—Comcast had already agreed to cease its BitTorrent interdiction before the FCC's ruling was issued. Instead, the court's ruling is important because it represents a blow to FCC Chairman Genachowski's proposed net neutrality regulations, which are premised on the same theory of "ancillary jurisdiction" that the FCC used against Comcast and that the court rejected today.

Here's the problem: Congress has never given the FCC any authority to regulate the Internet for the purpose of ensuring net neutrality. In place of explicit congressional authority, the FCC decided to rely on its "ancillary jurisdiction," a catchall source of authority that amounts to “we can regulate without waiting for Congress so long a the regulations are related to something else that Congress told us to do.” Of course, this line of reasoning could translate into carte blanche authority for unelected bureaucrats to regulate the Internet long after Chairman Genachowski has moved on.

....

So while we are big supporters of net neutrality, we are glad that today's ruling has reasserted the important limits on the FCC's authority to regulate the Internet.

Mike Masnick (who became a father this week... congratulations, Mike!) channelled Martha Stewart and called the decision "a good thing":

Lots of people seem upset by this, but they should not be. This is the right decision. The FCC was clearly going beyond its mandate, as it has no mandate to regulate the internet in this manner. In fact, what amazed us throughout this whole discussion was that it was the same groups that insisted the FCC had no mandate over the broadcast flag, that suddenly insisted it did have a mandate over net neutrality. You can't have it both ways (nor should you want to). Even if you believe net neutrality is important, allowing the FCC to overstep its defined boundaries is not the best way to deal with it.

....

That doesn't mean that Comcast should get off free for its actions. It should still be punished -- but by the FTC, rather than the FCC -- for misleading its customers about what type of service they were getting, and what the limitations were on those services.

Jim Harper characterized the Comcast decision as a "crisis" we can live with:

Recall that in 2007 Comcast degraded the service it provided to a tiny group of customers using a bandwidth-hogging protocol called BitTorrent. Recall also that before the FCC acted, Comcast had stopped doing this, relenting to customer complaints, negative attention in news stories, and such.

In the wake of the D.C. Circuit ruling and the crisis it has created, Internet users can expect the following changes to their Internet service: None.

Wow. With crises like these, who needs tranquility?

“As a result of this decision, the FCC has virtually no power to stop Comcast from blocking Web sites,” the release intones.

That would be worrisome, though still not quite a crisis—except that Comcast would be undercutting its own business by doing that. Did you know also that no federal regulation bars people from burning their furniture in the backyard? That’s the same kind of problem.

Agree or disagree with the court's ruling, many speculated about the FCC's options. Paul Feldman discussed four possibilities: appeal to the Supreme Court, get Congress to grant them the authority they lack to regulate the internet, reclassify key aspects of internet access as telecommunications services rather than information services (and thereby bring it within their established authority), or build a stronger case for ancillary jurisdiction under the current classification. Jack Balkin also discussed the former three options, though his omission of the final one probably shouldn't be interpreted as disagreement with Feldman; Balkin wrote that "Comcast and the rest of the broadband industry shouldn't pop the champagne corks just yet". Mitchell Lazarus was cautiously — very cautiously — optimistic that the FCC could ultimately prevail:

Network neutrality – the principle that Internet providers should treat content even-handedly – seems to be dead, waiting only for someone to close its eyes and straighten its tie. The more desperate among its advocates – including at least one FCC Commissioner – speak openly about the nuclear option: a step called “reclassification.” This means the FCC would reclassify broadband Internet service as a common carrier “telecommunications service,” thereby exposing it to a wide panoply of regulation. As my colleague Paul Feldman notes, reclassification would generate opposition from several industry segments and possibly Congress, and would certainly lead to protracted court appeals. Also the legality of reclassification is in doubt. Many components of Internet service simply do not fit the definition of telecommunications service (see below), and so are not plausibly subject to regulation.

Reclassification is a sledge-hammer. We need a scalpel. Fortunately, one is available.

....

Suppose the FCC were to revisit that 2002 cable decision, the one holding the telecommunications and non-telecommunications aspects of Internet service to be inseparable. Could the FCC now change its mind, and separate out the transport-for-pay component as a telecommunications service? Then, instead of applying the full weight of common carrier rules, it could impose just one: a requirement like that in Computer III, requiring the operator to allow competing ISP on the cable. That would bring back competition among ISPs, and create a major disincentive to tampering with content.

[C]onsider a different conception of neutrality, one drawn from free speech jurisprudence: What matters is the reason for the different treatment. If a municipality bans sound trucks but not leafletters from residential neighborhoods, that's a kind of different treatment of different speakers, but it's not censorship. Why not? Because the reason for banning the sound trucks has nothing to do with the identity of the speakers or the content of their speech. We can say that the prohibition of sound trucks but not leafletting is neutral in the more relevant sense of neutral with respect to speech and speakers.

So too here, one might think that if Comcast is slowing down bittorrent because it gobbles up much more bandwidth than Google or Yahoo! does, then interfering with bittorrent but not Google or Yahoo! looks neutral in the relevant sense.

For my part, I tend to agree with Jim Harper that the net neutrality situation is, to some extent, self-correcting through market mechanisms. I also share Fred von Lohmann's and Mike Masnick's opinions that, to whatever extent the market can't correct access providers' oversteps, the FCC shouldn't. For the FCC, net neutrality is a square-peg/round-hole problem. Just because the FCC is the most enthusiastic agency angling for the chance to regulate the internet doesn't make it the best-suited; frankly, they've overstepped and "ancillaried" their authority so egregiously for so many years that I'm enjoying this past week's slap-down just a bit more than I should.

It isn't every day that a Supreme Court justice announces his retirement, so Justice Stevens' announcement this past week was covered to a fare-thee-well in the legal blogosphere and elsewhere. Erin Miller provided a good overview of the early news coverage of the announcement. Lyle Denniston has watched the Court longer and more closely than most and he discussed how Stevens' retirement will change the dynamics at the SCOTUS:

If it has been so that the Supreme Court could properly be called the “Kennedy Court,” because of Justice Anthony M. Kennedy’s grip on a tie-breaking vote much of the time, that may well be even more so when the Justices open a new Term next October. Without Justice John Paul Stevens, who announced Friday that he is retiring soon, Justice Kennedy moves into position to become a frequent “assigning Justice.” That is a role not well known beyond Court-watchers, but it is quite important, and can make a difference in how ambitious, or cautious, the Court is in ruling on major, hard-fought cases.

But Kennedy also will no longer be an object of Justice Stevens’ efforts to marshal a majority of the Court for results that are — more often than not — liberal rather than conservative. There is, at present, no other member of the Court’s liberal bloc likely to match Stevens’ ability to persuade a sometimes-reluctant Kennedy to join with that bloc in a closely divided case. If Kennedy is to vote for liberal outcomes, it may well have to be more of a personal choice than it has seemed to be up to now.

Jeff Gamso wrote that Stevens' announcement has set in motion another act of a tiresome drama:

I've never met Obama. I have no inside information. But the guy's not a radical no matter what Newt Gingrich says. He's shown no inclination to appoint to much of anything anyone who looks controversial. That means a safe pick.

It means someone the Republicans won't hate however much they claim they do and even if they won't vote for confirmation.

It means someone who's most radical mantra is likely to be "with all deliberate speed."

It means someone who believes in the American Dream because "it darned well worked for me and everyone I hang out with."

It means someone who can look at the Senate Judiciary Committee and say with a straight face:

I have no ideas that are relevant to being a judge and never have had any; I understand that the job of being a Justice is like any other job that requires some arcane knowledge but no insight; I recognize that the mainstream of constitutional interpretation involves not actually interpreting it but understanding that the Constitution means what it says. Except for parts of the First, Second, Fourth, Fifth, Sixth, Seventh, Eighth, and Fourteenth Amendments and all of the Ninth and Tenth Amendments, except maybe not the Tenth all the time, and I'm actually on both sides of the question when it comes to the First and Second.

The Democrats will praise that person with the adopted persona for its wisdom. The Republicans will say they don't believe the person is telling the whole truth. There will be lots of posturing.

Let the Games Begin.

Gamso could see what's coming; Matthew Franck discussed what we wouldn't be seeing:

1. The president and his advisers will not send up a nominee who could actually be defeated in an up-or-down vote in the current Senate, nor someone so insufficiently vetted that some subsequent discovery or dissatisfaction will cause his or her withdrawal. In short, no Harriet Miers out of this White House.

2. The Senate Republicans will mount no serious effort at filibustering the nomination. And, of course, they shouldn't. I doubt they will even talk about it to any extent that requires our attention. The only justification for senatorial sand in the gears would be an unseemly Democratic rush to the final confirmation vote without sufficient time for debate. Democrats will want a vote sooner rather than later, but they will not act so hastily as to give Republicans much purchase in complaining about the timetable.

3. The nominee will be neither candid nor specific in answer to senators' questions, either about precedents and patterns of jurisprudence, or about overall judicial "philosophy" in interpreting the Constitution. We will certainly learn nothing new about his or her views, and may even know less after the hearings than before. The playbook here was written in the Sotomayor nomination. Disingenuous disavowals will be made of any past statements that openly embraced "progressive" outcomes or the "living Constitution." The prestige press will proclaim the nominee a "moderate" and will get an assist from lefties who profess, sincerely or not, to be disappointed....

4. No Republican senator will express an altogether consistent view in opposition to the large role the Supreme Court has arrogated to itself in our constitutional order in the last century and a quarter. It hasn't happened yet, so I don't expect to be pleasantly surprised on this score.

[F]or now, at least judging from the tenor displayed Sunday on the talk-show circuit, Senate Republicans don’t seem all that revved up, all that eager to come out swinging. Perhaps we’re misinterpreting their remarks Sunday, but they seem to be signaling that they might be okay with any of the five names getting mentioned most prominently — Solicitor General Elena Kagan, Seventh Circuit judge Diane Wood, D.C. Circuit judge Merrick Garland, Homeland Security Secretary Janet Napolitano and Michigan Governor Jennifer Granholm.

While some were handicapping the confirmation process, nominee unseen, others were proposing (seriously or not) nominees. Norm Pattis suggested that the President nominate a trial lawyer rather than the typical academic or legal politico:

The current court is composed almost exclusively of lawyer's whose blood runs pure blue with Ivy League pedigrees, big law experience and years laboring in the vineyards of the nation's federal appellate courts. Altogether absent from the court is anyone with substantial experience in the trenches where legal abstractions have the most direct impact on the lives of ordinary Americans.

....

I often wince when I read high-court decisions. They sometimes read as though they were written by tourists beholding the suffering of others. Such legal theories as the harmless error doctrine, qualified immunity and the explosion in exceptions to the Fourth Amendment have the redolence of a Wall Street bailout: Power wins. The Government, like Wall Street, is too big to fail. Hence, legal doctrine deserts those in need in favor of those in need of deceit to remain in control. The courts drift further and further away from the promise of liberty, and the people, like sheep, are expected simply to bleat in unison that all is well in this the best of all possible nations.

Except we know that this isn't paradise. It is no longer even much of a city on a hill. The American Century ended long ago with a thud. Now even the American dream is becoming, for many, a cynical farce. We do not need another Supreme Court justice who has grown fat, sassy, and insulated from the raw emotions most Americans struggle with -- fear, need, and, yes, sometimes fury. What we need is a lawyer who has spent a career representing ordinary people in ordinary trouble.

Brian Tannebaum wasn't afraid to propose a longshot nominee whose confirmation would be anything but business as usual — Scott Greenfield. Tannebaum wrote:

Many know that Scott is a friend of mine, but when contacted today, he would only say that he "would seriously consider it."

Scott, while no darling of conservatives, brings 25 years of experience as one of New York's most well-known criminal practitioners. He has an AV rating, the highest possible, from Martindale Hubbell, and is recognized in “Who’s Who” in the world, America and American Law. He has served as a legal expert and analyst for television news shows from “60 Minutes” to “20/20”, and ABC, NBC, CBS, BBC, Court TV and Fox.

....

While he may be considered a long shot, I wouldn't count him out. The Court needs a criminal practitioner, and Scott Greenfield may just be the one to get the nod.

Greenfield isn't packing his bags for Washington just yet, but he addressed the groundswell of support for his nomination:

Based upon my deep sense of patriotism and public service, and recognizing that the trench lawyer who be first in this movement will likely be subjected to as much, if not more, scrutiny than given an appointee from the opposing political party by the Senate, I offer myself as the sacrificial lamb to my president as the next associate judge of the Supreme Court of the United States.

....

It's not going to be easy. As one person commented to Tannebaum,

No way Obama has ever even heard of Greenfield. Furthermore, presidents pick people who write legal treatises and the like, not blog posts.

Certainly, my appointment will be a bit outside the box, if you will. But Mr. Anonymous' points are precisely why my appointment, at this juncture in history, would be perfect. Should we limit selection of a branch of government consisting of only nine (count them, 9) people, appointed for life, to those who pal around with the president? Isn't that just a wee bit restrictive for a position so important to the future of our nation? Should our President not look beyond those he's heard of to those who would serve with distinction? I say, think bigger, Mr. Anonymous. And smaller.

As to the second point, I cannot agree with Mr. Anonymous. I've read legal treatises. I've read blog posts. Let me tell you, the former are not nearly as interesting as the latter. In fact, the former are a bore. I'm talking a crushing bore. Boring. Boringas. Boringamos. Isn't it time that we broke from the old, the tedious, the incomprehensible, and tried to do better? Would it be a crime for Supreme Court opinions to be a little less obtuse and a little more interesting?

Of course, odds are that no trial lawyers, Greenfield or anyone else, will be President Obama's nominee; as Orin Kerr pointed out in a cheeky post, the short list is nothing but the usual suspects:

[C]onsider the broad range of choices Obama faces. His shortlist consists of former law clerks to a wide range of the liberal Justices of the 1970s and 1980s. Obama must choose between a Brennan clerk (Garland), a Marshall clerk (Kagan), and a Blackmun clerk (Wood). Further, the shortlisters differ dramatically in that they had different high-level positions in the Clinton Administration. Will Obama pick the former Deputy Assistant Attorney General for the Criminal Division (Garland), the former Deputy Assistant Attorney General for the Antitrust Division (Wood), or the former Associate White House Counsel (Kagan)?

Even if Obama decides on a former academic, he has to pick which kind of resume he wants. For example, does he pick the woman who was a full-time law professor at the University of Chicago from 1981 to 1993 (Wood)? Or does he pick the woman who was a full-time law professor at the University of Chicago from 1991 to 1995 (Kagan)? Obviously, these are big choices.

Jack Balkin discussed President Lincoln's nomination of Salmon P. Chase and the lessons history holds for today's president:

When Abraham Lincoln explained why he had nominated Salmon P. Chase, one of his political rivals, for Chief Justice in 1864, he explained that "we want a man who will sustain the Legal Tender Act and the Proclamation of Emancipation. We cannot ask a candidate what he would do; and if we did and he should answer, we should only despise him for it."

....

Ironically, although Lincoln appointed Chase because he believed Chase would vote to uphold the legal tender act (Chase had been Treasury Secretary during the Lincoln Administration), after the war Chase ultimately voted to strike down the law in 1870. It is possible that Chase did so in part because he still thought he could become President in 1872, this time as a hard-money Democrat. It was not to be, however.

....

What is the modern equivalent of emancipation and legal tender for President Obama? It would probably be, in no particular order, support for the constitutionality of the recently passed health care bill, preservation of Roe v. Wade (as modified by Casey), and support for robust (but not necessarily unilateral) Presidential power in surveillance, detention, military commission, rendition, and other war on terror issues. With a few notable exceptions, President Obama has adopted most of President Bush's war on terror policies, especially the versions during Bush's second term. At the same time, Congress has ratified many of these policies through legislation, including the FISA Amendments Act of 2008 and the Military Commissions Acts of 2006 and 2009. Obama wants all of these war on terror policies upheld. He doesn't want any trouble from his nominees on these issues. That is to say, he hopes for someone who will not be like Salmon Chase, who double-crossed him on legal tender. And because Supreme Court Justices today rarely have presidential ambitions, Obama is much more likely to get what he wants.

I won't rehash the Tale of the Unethical April Fool's Prank from last week's "Round Tuit" post. If you're unfamiliar with the back-and-forth which followed Eric Turkewitz' masterful "Official White House Legal Blogger" announcement and Jack Marshall's subsequent accusations that Turkewitz had breached rules of legal ethics, please take a look back at that post; you'll need to go there or to one of the other blogs which covered Marshall's bogus accusations and his subsequent defense of his unfounded claims because the posts at Marshall's blog, together with the hundreds of comments those attracted, have been largely removed in favor of a sanitized overview of the incident. Where Marshall's original accusation was, there is now this notice, pointing to his apology/explanation/whitewash:

A note entitled "April Fool's Day Isn't For Everybody" was originally included in this post. It discussed a web hoax pulled off on the New York Personal Injury blog by attorney Eric Turkewitz, with the assistance of other bloggers, and I took the position that this was inappropriate and unethical, even on April Fool's. My criticism was unfair and excessive, however, and I defended my position carelessly in subsequent posts and replies without sufficient thought or perspective. I have apologized privately to Eric, who was gentleman and kept his sense of humor through the whole fiasco, and he has been more gracious than I deserve. My explanation of the incident and my apology is here.

[Link omitted.] Marshall's explanation for this restructuring of the record on his blog is that unlike others' blogs, his is an information resource and having demonstrably-incorrect information (along with unflattering commentary, presumably) does a disservice to those who visit seeking ethics enlightenment. Marshall attributed some of the turnabout in his opinions and demeanor over the course of Prankgate to his finally consulting his mysterious and reputedly-miraculous "files"; if his blog is an offshoot of those, I suppose some heightened reverence and special treatment might be warranted. On the other hand, in explaining his decision to leave legal practice to pontificate about legal ethics, he's also written that he "abandoned the practice of law precisely because I found wrestling with the ethical conflicts and dilemmas too stressful". To me that sounds like a naval officer abandoning the sea for fear of drowning, opting to teach weekend swim classes at the local "Y" instead; you can make of it what you will, however.

Scott Greenfield was amongst Marshall's earliest and strongest critics after his accusations against Turkewitz were made; following Marshall's "apology" (but before the deletion of the record on his blog), Greenfield remained critical:

He apologized to Turk, which Turk gracefully accepted. Others praised his willingness to admit he was wrong and apologize. The "hoary" (to borrow a word) chestnut that it takes a big man to apologize was floated. Kumbaya was heard in the distant background. The train stopped wrecking itself, over and over, and we could all return to our normal blogospheric viewing. Who cared that some idiot named Marshall flung a false accusation, raised a ruckus against a respected lawyer, smeared many of the most respected members of the blawgosphere, then skunked off with his tail between his legs, admittedly wrong?

Despite watching for the past two days, mostly laughing at the antics of one of the most pompous, narcissistic ignoramuses I've yet to see online, I'm not satisfied with this conclusion.

....

Without question, it's better that this worthless, pontificating, ignoramus finally conceded that he was wrong, even if he does so in a vain attempt to salvage what remains of his reputation only after the universal condemnation of the blawgosphere. We tend to be a fairly forgiving bunch, and the amount of energy put into dealing with this otherwise inconsequential self-promoter far exceeded his worth. But I don't buy his apology. Not in the slightest.

I believe the apology is wholly disingenuous, replete with spin at every turn. I believe that Marshall is trying to resurrect himself, only because he now realizes that he committed marketing suicide with the universal condemnation. His apology is nothing more than a carefully crafted rationalization of his misconduct. His apology continues his attack, merely from another angle. Even wrong, he's still right.

....

If others forgive him, that's their choice. Some may think that he deserves a second chance. That too is their choice. I believe he's a danger to ethics. He can have a second chance being a dog catcher, not an ethicist (if he ever was one except in his own mind). I have deliberately used a wealth of ad hominem attacks on Marshall because I believe he should be attacked for what he's done and how he's done it. I am deliberately harsh. That's what Marshall deserves. It's unfathomable to me that anyone would pay heed to this worthless twerp on any subject, no less ethics.

Mark Bennett was also having none of Marshall's fauxpology, likening the disgraced "ethicist" to the fictional narcissistic and unethical failed lawyer Elmer Gantry:

Ethics “expert” Jack Marshall conceded that he was wrong about Eric Turkewitz’s April Fools’ Day hoax. Which was good. Better, I thought, to sometimes be wrong and realize it than always to be right. A very simple apology should have followed: Dear Mr. Turkewitz, I was wrong. I screwed up. I have no idea what I was thinking. I cannot overstate the magnitude of my error, and hope you will forgive me. If you would like me to remove the offending posts, I am willing to.

But . . . no.

Instead Marshall writes a muddled post (I challenge you to understand what he’s saying on the first reading; I read it twice, and I’m still not sure) purporting to explain how he “Became an April Fool and an Ethics Dunce.” In the lengthy post beginning, “I’m not going to spin this,” he tries to spin it: his error (alleging publicly that another lawyer’s April Fools’ Day prank violated that lawyer’s state’s ethical rules) “was the product of a toxic mix of factors, prime among then being that I didn’t review my own files.”

His own files?

....

Jack didn’t accuse Turk of a technical violation: he accused him of a violation that, by definition, involved dishonesty. To an unethical lawyer, making unfounded allegations of dishonesty might be no big deal, but to the rest of us such accusations are a very big deal indeed. Them’s fightin’ words.

From a misguided sense that even scoundrels deserve second chances (even when they've burned-through three or four chances in as many days), I spoke up at Bennett's blog in defense of Marshall's apology:

Marshall’s “apology” may be (and probably is) less than sincere, but... if it’s less sincere or succinct or… well, apologetic than it could’ve been, his apology is also more comprehensive and unequivocal than some. For all the ridiculous “consulting my files” bullshit, it’s still an “I was wrong and he and all the many others were right” rather than the usual “my comments were misconstrued and I’m sorry if anyone took offense” dodge or, even worse, simply going dark and deleting his blog and all the commentary, as has been done elsewhere.

Imagine my chagrin when soon thereafter, those posts started disappearing. Mea culpa. Noting that "rash of disappearances", Scott Greenfield wrote that Marshall's backpedaling and continuing narcissism put "the Me in Mea Culpa":

The rule is that one should never attribute to malevolence what can be explained by sheer stupidity. With that in mind, it would be wrong to suggest that the self-proclaimed ethicist is, himself, intentionally and deliberately unethical. Even if this conclusion can be clearly drawn from his removal of posts and comments that demonstrate his commission of conduct that some might find flagrantly unethical, it's still possible that his finger accidentally hit the delete button on each of these embarrassing and incredibility humiliating posts that undermine his fevered efforts to pretend they never happened, or that his "self-abasing apology" wasn't calculated to excuse, justify and trivialize any itty-bitty, tiny, technical error in his analysis (which was actually correct if you squint really hard). And so I will not attribute malevolence to him.

Jack Marshall is stupid. So says this jackal. Too stupid to ever be allowed to opine to a lawyer on the subject of ethics. I only say this because I'm trying to be kind to Marshall, Nicer than he was to Turkewitz. Nicer than he deserves.

When will this stop? When Marshall stops trying to sell his personal version of ethics to lawyers and get a growth position at Dairy Queen. But as long as they continue to try to sell their crap to lawyers and bar associations as ethics experts, then there will be need for us jackals to protect lawyers from the experts. I'm as tired of this as your are, but it remains a concern that Jack Marshall and ProEthics are still out there trying to sell themselves. Let no one forget or be misled, even if Jack Marshall, in his own opinion, thinks it was no big deal and he's still a really swell guy.

On pretty much any subject you'd choose, I'm happy to let Greenfield have the last word; on this subject in particular, I'm overjoyed to do so.

After spending an inordinate amount of time these past couple of weeks considering unethical ethicism, I felt a need to find my moral center. It turns out that I have none, but I did find a very nice post from Ron Coleman concerning moral rights in Massachusetts' Visual Rights Act. That Act provides in part that artists may block the use of their name in connection with a modification of a work "which would be prejudicial to his or her honor or reputation". Coleman wrote:

Hm. Sometimes I wish I had a scorecard to figure out how libertarians, and or mere free-market magic hand guys like me, are supposed to come out on “moral rights.” I’ll say this much: For a country that doesn’t speak a Romance language, the idea of a federal statute that protects “honor” is problematic. And after all, if you buy the thing, can’t you just do whatever you want with it? If you want to limit my right to do that, then by gum let’s bargain for such a limit. (I guess that’s the difference between a “Judge Ponsor” and a “Judge Posner“!)

And yet I too have some sympathy, as a non-visual artist (i.e., “a face for radio”) who has tasted the bitter experience of having his own “work made for hire” simply put under another person’s name by the copyright holder (and no, the fact that it was a federal judge’s name, and the ABA that did it, did not make it any less bitter) when the collective work in question was reissued in a second edition.

I have sympathy. I didn’t say I think it’s ok, ok? I mean this is America. We don’t need copyrights on our money and we don’t need statutes to protect the “honor” of creative types! I think. In fact if you read too much into “sympathy” I’ll accuse you of dishonor! And we can duel. Pistols at dawn!

Norm Pattis also engaged in some soul-searching this past week, as he had occasion to revisit some of his earlier writing on his tenth anniversary as a columnist for the Connecticut Law Tribune:

[L]ooking back on the columns made me cringe. It is so much easier to be a critic than a builder of something of enduring value. In the course of ten years, I cast enough stones to fill a coliseum. Rarely did I give thanks or express gratitude. Reviewing the decade was not, I repeat, a source of contentment. It made me realize that the note of discord is sometimes too shrill. My ears were ringing after the review.

I draw no larger lesson from this. I simply report it and recognize the need for new notes. And I wonder whether I am capable of learning to sing in a different key.

Finally this week, I'd like to highlight some excellent political blogging and podcasting ahead of Britain's upcoming election by my friend and occasional collaborator, Charon QC. He's taken a bullet for his countrymen by reading the Conservative party's manifesto so that they didn't need to do so (though he admitted at one point that he began "to reel slightly from the rather dull prose and, possibly…the wine"):

Today Great Leader Kim Il Kamer On launched an invitation to the people of Britain to join him in government…. of all places… at Battersea Power Station, which allowed soon to be ennobled John Lord Two Shags Prescott to tweet…. “Tories to launch manifesto at Battersea Power Station – impressive from the outside but hollow and empty within”.

Battersea Power Station used to spew out a lot of things that were not terribly good for ‘one’. It may be that things have not changed that much?

....

There is to be an emergency budget. This we knew. The Faustian Pact with the people did not mention VAT and appeared to my jaundiced eye to be a bit thin on how they were going to start cutting the deficit. Cunningly, they are going to cleanse the nation of the NI rise and fund it through cutting waste – where, we are not told.

....

The plan to provide 5000 community volunteers to fart about in uniforms, no doubt, is still in the plan. What these worthies will actually do of value to society is not set out in any detail. Join the Police Community Support Service and eat buns on street corners like the others?

....

Discipline in the classroom: Words to create a frisson in the savage breast of some ‘old school’ Tories. Children are running amok in classrooms. The Tories plan to give the headmaster the ‘last word on discipline’ – presumably not the type of Papal last word… like ‘This is our little secret. Tell no-one about this beating, waterboarding, roasting in front of a fire secret…and for good measure here is a superinjunction…” type of last word?

Charon has also begun a series of twenty-minutes-long podcasts with notable figures in British politics and political commentary. The first two, with candidate-turned-publisher Iain Dale and Labour party Member of Parliament Tom Harris are available now at his site.

2 comments:

I have avoided engaging or rebutting the over-heated attacks on me for my ill-considered criticism of Eric's hoax. It does amaze me that anyone would find my apology less than crystal clear who wasn't predisposed to find fault with it, but I guess that's the problem.

Yes, the information that would have prevented me from making the misstatement in question was in my own files. Translation: there was no excuse for not checking my own resources before I shot off my metaphorical mouth. Is that really so incomprehensible? Nor was my explanation of why I screwed up in any way an excuse. Some people, and I guess you and Scott are two, can't distinguish between reasons, which explain why something occurs, and excuses, which relieve the actor from all or some blame. I made no excuses. Unfortunately, I do not have the liberty on my blog to just engage in flame wars; its purpose is to assist ethical analysis, which means explaining why all of us do the wrong things sometimes, including me. Rushing out a blog post and a response without properly researching it? Wrong and reckless. The reason we sometimes do it? Time pressure. Lesson? Be vigilant when under time pressure. This isn't rocket science.

I'm not going to explain why the apology was both sincere and complete, since it is clear that you and a few others want to subject it to more hostile analysis than is either warranted or rational. I apologized for declaring a web hoax to be professional misconduct, specifically misrepresentation. That was excessive, unfair to Eric, and most importantly, an incorrect interpretation of the Rules. I have ethical objections to all web hoaxes, and will not hesitate one bit to state them in the future. But Eric's was particularly mild one, especially considering when it was executed, and was an inappropriate target of my criticism. But why you and Scott seem to think that questioning the propriety of web hoaxes is such a sin against the universe is perplexing, not that I care.

There is nothing sinister or unethical about my removing a section of one post and all of another that I have declared was based on bad judgment and sloppy research. I left them up for a reasonable time, long enough, I thought, for those who were determined to call me every name in the book to get it out of their systems. (Obviously, I was wrong about that, too.) I have no obligation to critics to give them ammunition ad infinitum to heap abuse on me, especially when I have acknowledged---in full---my error and sincerely apologized. Ethics Alarms is not supposed to be about me, and to the extent that those posts were skewing the orientation of the blog, they needed to come down. I constantly update and correct all my posts, and take some down that I discover were based on incomplete or erroneous information.If I can't stand by an opinion, I don't want it up. Sorry if that robs you of some fun, but there it is.

I mistakenly argued that the web hoax in question was unethical; I never wrote nor believed that Eric himself was unethical. There are unethical professionals, and there are ethical professionals--all of them, probably--- who do unethical things on occasion. You do not seem to appreciate the difference: I made a stupid mistake, admitted it as soon as I became convinced of it, and from that you conclude that "Marshall is stupid." That kind of statement is hurtful, but it is also absurd and self-revealing.

Ethics---not compliance, but ethics---is inconvenient these days,as the fury often directed at me for presuming to make ethical judgments to prompt people to think critically about what kind of culture we want to have proves. The activity is full of risk, because mistakes are inevitable. When I make them, I will admit them, and count on the fact that most people are fair, have a sense of proportion, and are willing to forgive and move on. I am not afraid to be wrong; I do want to make sure I don't hurt anybody when I am wrong. The Golden Rule applies.

You write, "I mistakenly argued that the web hoax in question was unethical; I never wrote nor believed that Eric himself was unethical. There are unethical professionals, and there are ethical professionals--all of them, probably--- who do unethical things on occasion." I think that trying to draw a distinction between arguing that an attorney's conduct is unethical and the attorney himself is unethical is a bit fine. One cannot treat the results of professional conduct (and you discussed Turkewitz' prank as a professional act rather than a personal one) as though these have sprung from thin air; by alleging that what Turkewitz did is unethical, you have alleged that he is unethical, at least to some degree. Yes, we can talk about matters of degree, but there is a fundamental distinction between ethical attorneys and unethical attorneys who are more ethical than other unethical attorneys; by making this allegation, you have lumped Turkewitz in with the latter group, where even you would agree he does not belong.

Though it's a minor point, the "Marshall is stupid" commentary is Greenfield's, not mine. I say that this is a minor point because I understood his message and chose to quote his words in my post, if not to explicitly adopt them as my own. Though provocative, I think that in the context used in his post, his point is well-taken.

Admittedly, much of my frustration with your deletion of some of the key posts and comments at your blog in favor of a massaged retelling of the situation results is simply personal pique. Had I not defended your original apology at Bennett's blog and commended you for leaving the original posts intact, I would not have felt so strongly about the subsequent deletions. You, as the proprietor of your blog, certainly are well within your rights to modify your site's contents as you see fit. I thought it reflected well on you to leave the unadulterated posts and comments intact; I think it reflects badly on you to remove them. While I believe these thoughts reflect broadly-shared senses of blogging norms, these are ultimately just my own thoughts.

You say that you "do not have the liberty" to engage in flame wars on your blog. You do. It's your blog and it's just a blog; it's not some sort of venerated reference source which must remain free of extraneous commentary. You established a blog, you posted on it, you invited comments, you received them, and you chose to delete them. You have that right and you exercised it -- own that rather than positioning your actions as done in service to a higher objective. Please don't expect me to applaud you for deleting the original record here, however.

Unsilent Partners

About Me

I am presently corporate counsel for Accela, Inc., a software company headquartered in San Ramon, California and am a member of both the Oregon and California State Bars. More detailed professional information is available at my LinkedIn profile.

I have been blogging at Infamy or Praise since early 2005. From 2006 to 2009, I served as a "Sherpa" at Blawg Review, the weekly carnival of legal blogging; I have also hosted (or co-hosted) six editions of Blawg Review, the first four of which were awarded a "Blawg Review of the Year" award. I formerly was a co-blogger at Unsilent Partners. I'm on Twitter as "colinsamuels".

I am the author of "Humanizing the Profession: Lawyers Find Their Public Voices Through Blogging" (11 Nexus L. J. 89 (2006)) and a contributing author to "Blogging and Other Social Media" (Gower Publishing Limited, 2008) and "Legal Profession: Modern Approach" (The Icfai University Press, 2008).

None of the foregoing blogging, tweeting, or personal writing necessarily represents the views of my employer; responsibility for these is entirely mine.